Courts Commons^™

Crown Prosecutors And Government Lawyers: A Legal Ethics Analysis Of Under-Funding, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Crown prosecutors and government lawyers are reliant on governments for their funding but exert no meaningful influence or control over such funding decisions. Nonetheless, this article demonstrates that as a question of law, under-funded Crown prosecutors and government lawyers risk violating their professional duties. If so, they must promptly inform the government, refuse new matters and, if necessary, withdraw from existing matters. If the government purports to block such refusal or withdrawal and does not provide adequate funding, resignation will become necessary. While law societies will likely not prioritize disciplinary action against such lawyers, the policy reasons to forego such …

Everything New Is Old Again: The Coming Metaverse, Platforms As Premises, And Addressing Harms That Occur Behind The Veil Of Scale, Lara Putnam, Jena Martin

Faculty Articles

Increasingly, social media companies have engaged in the creation, development, and deployment of "worlds" within a virtual reality setting, leading to significant interactions among users within these engineered spaces. However, this expansion has also been accompanied by harms. While some harms are unique to immersive reality technology, many mirror harms that occur in the analog environment, including fraud, theft, verbal abuse, and child sexual exploitation. Others replicate harms that have already exploded in non-immersive online spaces, including image-based sexual exploitation, cyberstalking, and invasion of privacy. Unfortunately, the architecture and infrastructure of these spaces has created what we coin here to …

Judging Judiciaries: How Sticky Defaults, Status Quo Bias, And The Sovereign Prerogative Influence The Perceived Legitimacy Of The New International Commercial Courts, S. I. Strong

Faculty Articles

Forum shopping is routinely criticized as contrary to procedural justice. However, recent years have seen an increasing number of jurisdictions engaged in the process of forum selling, in which countries actively seek to bring lucrative litigation business to their national judicial systems. One of the most common types of forum selling involves the creation of new international commercial courts designed to increase a nation’s competitiveness in the global litigation market.

Most studies of the new international commercial courts have focused on how procedural innovations adopted by different courts are likely to affect party choice. While useful, these analyses assume that …

Expertise, Ideology, And Dissent, Paul R. Gugliuzza, Jonathan R. Nash, Jason Rantanen

Faculty Articles

Part I sketches a theory of dissent, explaining how voting and opinion-writing behavior on a multi-member court, such as a federal court of appeals, is a function of both a judge's preferences, as well as costs, including the relational disruption that comes from disagreeing with colleagues.

Part II provides background on the U.S. Court of Appeals for the Federal Circuit as well as a survey of prior studies of decision-making on the court and explanations of those studies' limitations.

Part III describes our methodology, including the novel dataset we built for the purpose of this study.

Part IV conducts a …

Judicial Reform From The Inside Out, Daniel Epps, Marin K. Levy

Faculty Scholarship

The Judiciary Act of 1925, the subject of this Symposium, is known as “the Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous, perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in judicial reform efforts—what we call judicial reform from the inside out.

We survey examples of judges participating in reform debates from across …

Statutory Liquidation, Daniel Deacon

Articles

When might practice by the political branches settle the meaning of legal text? That question has mostly been taken up in the constitutional setting, with one strand of scholarship taking inspiration from Madison's statement in Federalist No. 37, that "{a}ll new laws ... are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series ef particular discussions and aqjudications." The prospect that post-enactment practice might liquidate the meaning of statutory text has been comparatively underexamined. That's not surprising. Under modern textualism, post-enactment considerations would seem to have little place. And under Chevron …

The Sovereignty Problem In Federal Indian Law, Matthew L.M. Fletcher

Articles

There is a sovereignty problem in federal Indian law-namely, that the federal government's sovereign defenses prevent tribal nations and individual Indian people from realizing justice in the courts. Often, compelling tribal and Indian claims go nowhere as the judiciary defers to the interests of the United States, even where Congress has expressly stated its support for tribal interests. Conversely, tribal judiciaries allow claims to proceed to the merits, invoking customary and traditional law to hold tribal governments accountable.

Sovereignty theory helps to explain why justice can be done in one court system but not another. But federal, state, and tribal …

Pitching For Reform: Cangrejeros' Push To Level The Legal Playing Field By Challenging Baseball's Antitrust Exemption, Justin P. Chaljub

Fordham Journal of Corporate & Financial Law

For over one-hundred years, professional baseball has enjoyed an antitrust exemption unique among American major sports leagues, stemming from Supreme Court decisions in Federal Baseball and its progeny. This exemption has significantly influenced the evolution and structure of Major League Baseball (MLB). Despite extensive criticism and challenges for judicial and legislative reform, the exemption persists today.

However, new efforts have emerged to comprehensively disrupt this framework. In 2023, Nostalgic Partners was brought and structured to reach the U.S. Supreme Court. Plaintiffs anticipated they would lose at the lower court levels and garnered widespread support for the Court to grant a …

Alternatives To Delaware? Evaluating Corporate Law In Nevada, Texas, And Wyoming, Joseph Landau, Bailey Swartz, Anthony Rickey, Robert Ragazzo, Benjamin Edwards, George A. Mocsary

Fordham Journal of Corporate & Financial Law

No abstract provided.

How To Evaluate Non-Majority Control: What History And Statutes Tell Us, J. Travis Laster

Fordham Journal of Corporate & Financial Law

Under American law, a person who controls a corporation is a fiduciary. Since the nineteenth century, American law has treated a person who wields a majority of the voting power as having control. For almost as long, American law has recognized that holding a majority of the voting power is sufficient but not necessary for control. During the past two decades in Delaware, two schools of thought co-existed regarding non-majority control. One school took a formal approach that (i) shifted from examining control over the business affairs of the enterprise to control over the board, (ii) discounted sources of influence …

The Political Commitment Of The Supreme Court Of Texas To Protecting Controlling Equity Owners, Val Ricks

Fordham Journal of Corporate & Financial Law

The Supreme Court of Texas has revealed a political commitment to protecting controlling equity owners—e.g., shareholders, LLC members, limited partners—from liability related to their equity ownership. The Court does not say this, of course. The commitment the Court intends to reveal is a legal one. The political commitment must be teased out of what the Court does. The purpose of this article is to tease. Its method is to examine how the Supreme Court of Texas, in cases involving controlling or significant equity owners, extends the reasoning of its opinions out beyond law, and sometimes in conflict with it. When …

Reviving Shareholder Voice By Redefining Pre-Suit Demand, Wendy Gerwick Couture

Fordham Journal of Corporate & Financial Law

This Article diagnoses, and seeks to cure, an undertheorized dynamic relationship between two levers of shareholder influence in the modern public corporation: suit and voice. This Article demonstrates that, under current Delaware law, a shareholder must stifle its voice in order to retain the ability to pursue a viable derivative claim, thus inhibiting the shareholder’s monitoring and information-sharing roles. In particular, the onerous “demand made” litigation pathway disincentivizes pre-suit demand, and the expansive definition of pre-suit demand captures shareholder communications to the board seeking corrective action other than litigation. To avoid this collision between suit and voice, this Article proposes …

When Accomodation Bars Access To Justice: Implications Of Video Remote Interpreting In Legal Settings, Quincy Craft Faber

Mitchell Hamline Law Review

No abstract provided.

The Fortunate Demise Of Sec Staff Legal Bulletin No. 14l, Raffaele Felicetti

Fordham Journal of Corporate & Financial Law

In 2021, the SEC published its now rescinded Staff Legal Bulletin No. 14L (“the 2021 Bulletin”), revising its interpretations of the “ordinary business” and “economic relevance” exclusions under Rule 14a-8. This Article contends that the post-Bulletin landscape has proven undesirable. It empirically shows that environmental and social (“E & S”) shareholder proposals—including anti-E&S proposals—surged in response. Between 2022 and 2024 alone, E & S proposals accounted for 40% of all such filings in Russell 3000 companies over the entire 2014-2024 period, generating an estimated $23.3 million in additional processing costs for companies during that three-year window. Despite their volume, these …

Dobbs V. Brown, Benjamin H. Barton

Dickinson Law Review (2017-Present)

Dobbs v. Jackson Women’s Health Organization1is the most important and impactful Supreme Court decision since at least Roe v. Wade, and potentially since Brown v. Board of Education. Past survey data show that most Americans can only name two Supreme Court opinions: Roe and Brown. Dobbs will surely join that list. This Article compares the history, drafting, and opinions of Dobbs and Brown to show what a missed opportunity Dobbs represents. Regardless of whether you agree or disagree with the opinion, it should be clear that Dobbs was one of those unique times (like that of Brown) where the Court …

Asynchronous Trials: A New Approach To High-Volume Civil Adjudication, Henry Zhuhao Wang

Scholarly Publications

For thousands of years, trials were held in brick-and-mortar courthouses. Then COVID-19 ravaged the world, and many businesses and institutions, including judicial courts, went online. For the first time many people realized, accepted, and benefited from online trials held via videoconference software like Zoom. But Zoom fatigue is real. As the epidemic subsides, we must explore the next exciting growth point for judicial reforms.

Outside the courtroom, since the second half of the twentieth century, a revolution in communication methods has profoundly affected people’s daily life: we have switched from almost entirely real-time, synchronous human interactions, such as in-person meetings …

Bankruptcy Appeal Barriers, Jonathan M. Seymour

Washington and Lee Law Review

Appeals in bankruptcy do not look like appeals elsewhere in the federal court system. In particular, bankruptcy appeal barriers are strikingly distinctive. These barriers serve outright to block an appeal from being decided. An appellate court may dismiss an appeal, rather than consider the merits, if facts on the ground have changed so much since the original decision that providing a remedy to an appellant, even if victorious, would not be prudent. Take ongoing litigation in the Boy Scouts bankruptcy case. A plan of reorganization was confirmed fixing the entitlements of victims to compensation. Dissenting creditors argued bitterly the plan …

Emergency Oversight, Catherine Baylin Duryea

Faculty Publications

This Article examines one of the most pressing questions in administrative law: How much judicial oversight should administrative agencies face during an emergency? This issue was particularly salient during the COVID epidemic, but it is not new. The Second World War saw a significant expansion and consolidation of the power of administrative agencies as well as experimentation with the appropriate oversight role for courts. This Article analyzes one such experiment: judicial oversight of agencies implementing wartime anti-inflationary measures, i.e., price controls and rationing. During the war, Congress created a specialized court, the Emergency Court of Appeals (ECA), to hear disputes …

Structuring The President’S Removal Power: An Agency-Specific Approach, Peter Margulies

American University Law Review

Recent Supreme Court decisions have taken a broad view of the President’s power to remove executive branch officials. According to the Court, the President’s Article II obligation to “take Care that the Laws be faithfully executed” generally requires that the President have authority to remove officials at will. The Court has thus far declined to overrule Humphrey’s Executor v. United States, a 1935 decision upholding “forcause” restrictions on removal for multi-member “quasi-judicial” bodies such as the Federal Trade Commission (FTC). Nonetheless, recent Court decisions have eroded the rationale in the earlier case, which has received additional attention because of efforts …

The Hidden Verdict: Measuring Implicit Bias In Juror Decision-Making, Gina Dudley

Psychology | Senior Theses

This experiment examines the influence of implicit bias awareness on juror decision-making in cases involving Hispanic defendants. Explicitly, it tests three hypotheses: (1) bias-educated jurors will demonstrate lower conviction rates for Hispanic defendants, (2) these jurors will report higher confidence in their verdicts, and (3) they will show greater awareness of how their previous experiences influence their decision-making. This experiment uses a mock jury paradigm to investigate whether bias awareness interventions affect verdict decisions and juror confidence levels in cases with Hispanic defendants. Ninety participants were randomly assigned to receive or not receive implicit bias education before reviewing a case …

Rev. Dr. Martin Luther King, Jr. Celebration Lecture January 24, 2025, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Fixing Mfw: Fairness And Vision In Controller Self-Dealing, Zohar Goshen, Assaf Hamdani, Dorothy S. Lund

Faculty Scholarship

The legal regime governing controlling shareholders relies on the ability of Delaware courts to police conflicted transactions under the stringent "entire fairness" standard of review. This review involves both implicit valuation – evaluating the transaction process, and explicit valuation – assessing the fairness of the transaction's financial terms. This Article reveals a critical flaw in this regime: courts cannot reliably engage in valuation when the transaction involves an entrepreneur's idiosyncratic vision for the company. As a result, there is a gaping hole in Delaware's framework for policing the fairness of controller transactions.

Delaware courts have developed guardrails to avoid judicial …

To Free A Predator: The Flawed Rationale For Overturning Bill Cosby’S Conviction, Michael C. Kovac

Dickinson Law Review (2017-Present)

No abstract provided.

Is Federal Question Jurisdiction Arising Or Setting, Lumen N. Mulligan

Faculty Works

In this essay, I respond to Professor Arthur D. Hellman. Hellman argues that "there is reason to be concerned that the [federal] judicial system falls short of the Framers' expectations--primarily by denying many litigants in cases presenting federal questions 'their real day in an Article III court,' but also by fostering 'balkanization' rather than uniformity in the interpretation of federal law." It is a privilege to comment upon Hellman's thoughtful piece. In doing so, I begin by questioning the value of originalist interpretations of Article III jurisdiction both descriptively and normatively. I then turn to an intra-originalist critique that paints …

Inconclusive History, Allen Roston

Faculty Works

No abstract provided.

Virtual Court Proceedings And Their Effect On Criminal Defendants’ Rights, Hunter J. Phillips

Marquette Intellectual Property & Innovation Law Review

This Comment examines whether implementing virtual evidentiary proceedings diminishes a criminal defendant’s Constitutional rights. Part One introduces the Confrontation Clause and judicial interpretations that shape its modern legal view.

Part One also introduces the importance of face-to-face testimony and how the Confrontation Clause is founded upon that principle. Part One concludes by offering psychological research that highlights the im-portance of face-to-face proceedings that allow for effective criminal proceedings. Part Two introduces legislation that hinders defendants’ Confrontation rights and critically analyzes that legislation. Part Three argues for the abandonment of virtual criminal proceedings and highlights other factors that should be considered …

Court Forms And Court Reforms: Pro Se Litigants And The Limited Success Of Standardized Family Court Forms, Caroline Rogus

University of Michigan Journal of Law Reform

The first step in any civil lawsuit, long before a court will contemplate awarding relief, is initiating the court matter: a plaintiff must always start by effectively pleading their case. The court system rests upon the presumption that an attorney will create and file the requisite court documents—including complaints, answers, and motions—on behalf of their client. The reality, however, is that an extraordinarily high number of litigants do not have legal representation and must therefore proceed pro se and submit these documents on their own. Most jurisdictions offer pro se litigants standardized, fillable court forms. These forms are intended to …

Horizontal Stare Decisis In The California Courts Of Appeal: Law, History, And Reform, Michael J. Shipley

University of San Francisco Law Review

No abstract provided.

Hallows Lecture: Resorting To Courts Or To Community Conversations? Article Iii Standing As The Guardian Of Free Speech And Democratic Self-Governance, Michael Y. Scudder

Marquette Law Review

None.

After Courts: Democratizing Statutory Law, Ryan D. Doerfler, Samuel Moyn

Michigan Law Review

In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent enormous power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rulemaking and other processes) is, if anything, …